901 F.

2d 7

In re Shirley IVY, et al., Petitioners.

Shirley IVY Individually and as Representative of the Estate
of Donald Ivy, Deceased; Charles Jardon, and Tony K. Jardon
Individually and as Next Friend of Charles Jardon, Jr.,
Robin Jardon, Warren Jardon and Sharon Jardon; Verda
Wilson
Individually and as Representative of the Estate of Isaiah
Wilson, Jr., Deceased; Shirley Salewaski Individually and
as Representative of the Estate of Yen Salewaski, Deceased;
Gary Thomas; Mary Lee Thomas; James L. Kent; Emma I.
Kent; Charles Brown; Dawn Marie Inman Individually and as
Representative of the Estate of Bobby Joe Inman, Deceased;
Earl Thompson; Judy L. Thompson; James Donald Deloatch;
Joyce Deloatch; Peggy Sands Individually and as
Representative of the Estate of Martin Sands, Deceased;
Emile Annibolli; Ursula Margot Parry Individually and as
Representative of the Estate of James D. Parry, Sr.,
Deceased; James D. Parry, Jr.; James Christopher Parry;
Laura Jenkins Individually and as Representative of the
Estate of Eddie Jenkins, Deceased; and James White
Individually and as Representative of the Estate of Clarence
White, Deceased, And All Named Plaintiffs Sue Individually
and as Representatives of Those Similarly Situated,
Plaintiffs-Petitioners,
v.
DIAMOND SHAMROCK CHEMICALS COMPANY, a/k/a
Diamond Shamrock
Refining & Marketing Company and a/k/a Occidental Electro
Chemical Corporation and a/k/a Maxus Energy Corporation
and
a/k/a Occidental Chemical Corporation and a/k/a Diamond
Shamrock Company; and the Dow Chemical Company;
Monsanto

Company; Uniroyal Inc.; Hercules Inc.; Thompson-Hayward

Chemical Company, a/k/a Thompson Chemicals Corporation;
and
T.H. Agriculture & Nutrition Company, Inc., DefendantsRespondents.
Docket No. 90-3007.

United States Court of Appeals,

Second Circuit.
Submitted Feb. 13, 1990.
Decided March 28, 1990.

Melissa Chappell-White, Laxalt, Wash., Perito & Dubuc, Robert M.

Hager, Washington, D.C., for plaintiffs-petitioners.
Before LUMBARD, CARDAMONE and WINTER, Circuit Judges.
WINTER, Circuit Judge:

Plaintiffs-petitioners seek a writ of mandamus under 28 U.S.C. Sec. 1407(e)

(1982) and Fed. R. App. P. 21 directing the Judicial Panel on Multidistrict
Litigation (the "MDL Panel") to vacate its order transferring this action to the
United States District Court for the Eastern District of New York. We deny the
petition.

Petitioners filed this action against various chemical companies in a Texas state
court in May 1989, claiming harm from exposure to Agent Orange and other
herbicides during the Vietnam conflict. Although the complaint expressly
disavowed any federal-law basis for the suit, defendants-respondents removed
the case to the United States District Court for the Eastern District of Texas in
June 1989. After filing their notice of removal, respondents asked the MDL
Panel to transfer the case from the Eastern District of Texas to the Eastern
District of New York for consolidated or coordinated pretrial proceedings in In
re "Agent Orange" Product Liability Litigation, MDL No. 381. On July 7,
1989, the MDL Panel issued a Conditional Transfer Order to this effect.

Before the MDL Panel, petitioners moved to vacate the Conditional Transfer

Order. They also moved in the Eastern District of Texas to remand the action to
the Texas state court, but the district court declined to rule on the remand
motion, stating that it would defer to the decision of the MDL Panel. The MDL
Panel thereafter heard oral argument on petitioners' motion to vacate the
Conditional Transfer Order, and, on October 4, 1989, issued a Transfer Order
transferring the action to the Eastern District of New York. That order is the
subject of the present proceeding.
4

The MDL Panel based its decision to transfer on its findings

5 Ivy involves common questions of fact with the actions in this litigation
that
previously transferred to the Eastern District of New York, and that transfer of Ivy ...
for inclusion in the coordinated or consolidated pretrial proceedings in that district
will serve the convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation.
6

In re "Agent Orange" Prod. Liab. Litig., No. 381, slip op. at 1 (J.P.M.D.L. Oct.
4, 1989) (transfer order for Shirley Ivy v. Diamond Shamrock Chem. Co., No.
B-89-00559-CA (E.D.Tex.)). The MDL Panel also noted that the plaintiffs'
motion to remand to Texas state court could be heard and decided by the
transferee judge, Judge Weinstein of the Eastern District of New York. Id.

Plaintiffs failed, however, to move before Judge Weinstein to remand to state

court. Instead, they petitioned us for a writ of mandamus directing the MDL
Panel to vacate the transfer order on the ground that there is no federal subject
matter jurisdiction. For the reasons stated below, we deny the petition.
Section 1407(e) states in pertinent part:

8 proceedings for review of any order of the panel may be permitted except by
No
extraordinary writ pursuant to the provisions of title 28, section 1651, United States
Code.... Petitions for an extraordinary writ to review an order to transfer or orders
subsequent to transfer shall be filed only in the court of appeals having jurisdiction
over the transferee district.
9

28 U.S.C. Sec. 1407(e) (1982).

10

Plaintiffs argue that if the removal was improper because of a lack of federal
subject matter jurisdiction, then the transfer by the MDL Panel was invalid. We
believe that argument mischaracterizes the issue. Section 1407 does not
empower the MDL Panel to decide questions going to the jurisdiction or the

merits of a case, including issues relating to a motion to remand. See In re Air

Crash Disaster at Florida Everglades on December 29, 1972, 368 F.Supp. 812,
813 n. 1 (J.P.M.D.L.1973) (per curiam) (citing 28 U.S.C. Sec. 1407).
Moreover, Section 1407(e) authorizes us to review only certain orders of the
MDL Panel, including the order to transfer. We believe, therefore, that the sole
issue before us is the merits of the transfer viewed against the purposes of the
multidistrict statutory scheme, whether or not there is a pending jurisdictional
objection. So viewed, the transfer was entirely unobjectionable.
11

Section 1407 was intended to promote the "just and efficient conduct" of the
actions transferred. See H.R.Rep. No. 1130, 90th Cong., 2d Sess., reprinted in
1968 U.S.Code Cong. & Admin.News 1898, 1900. The legislative history
indicates that to qualify for transfer, civil actions must meet three criteria:

12
[F]irst,
they must involve one or more common questions of fact; second, they must
be pending in more than one district, and third, pretrial consolidation must promote
the "just and efficient conduct" of such actions and be for "the convenience of
parties and witnesses." It is expected that such transfer is to be ordered only where
significant economy and efficiency in judicial administration may be obtained. The
types of cases in which massive filings of multidistrict litigation are reasonably
certain to occur include ... products liability actions....
13

Id.

14

Agent Orange cases are particularly well-suited for multidistrict transfer, even
where their presence in federal court is subject to a pending jurisdictional
objection. The jurisdictional issue in question is easily capable of arising in
hundreds or even thousands of cases in district courts throughout the nation.
That issue, however, involves common questions of law and fact, some or all of
which relate to the Agent Orange class action and settlement, see In re "Agent
Orange" Prod. Liab. Litig., 611 F.Supp. 1396 (E.D.N.Y.1985), aff'd in part,
rev'd in part, 818 F.2d 179 (2d Cir.1987), cert. denied, 487 U.S. 1234, 108 S.Ct.
2899, 101 L.Ed.2d 932 (1988), and there are real economies in transferring
such cases to Judge Weinstein, who has been handling the Agent Orange
litigation for several years, see In re "Agent Orange" Prod. Liab. Litig., MDL
No. 381, 818 F.2d 145, 154-59 (2d Cir.1987) (describing history of proceedings
before Judge Weinstein), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98
L.Ed.2d 647 (1988). Once transferred, the jurisdictional objections can be
heard and resolved by a single court and reviewed at the appellate level in due
course. Consistency as well as economy is thus served. We hold, therefore, that
the MDL Panel has jurisdiction to transfer a case in which a jurisdictional
objection is pending, cf. United States v. United Mine Workers, 330 U.S. 258,

290, 67 S.Ct. 677, 694, 91 L.Ed. 884 (1947) (district court has authority to
issue injunction while jurisdictional questions are pending), that objection to be
resolved by the transferee court.
15

Our disposition of this matter is also consistent with the general rule that
appellate courts should avoid determining jurisdictional issues on a petition for
mandamus. As the Supreme Court indicated long ago,

16 traditional use of the writ in aid of appellate jurisdiction ... has been to confine
[t]he
an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to
exercise its authority when it is its duty to do so. Even in such cases appellate courts
are reluctant to interfere with the decision of a lower court on jurisdictional questions
which it was competent to decide and which are reviewable in the regular course of
appeal.
....
17
18
Ordinarily
mandamus may not be resorted to as a mode of review where a statutory
method of appeal has been prescribed or to review an appealable decision of
record.... Where the appeal statutes establish the conditions of appellate review, an
appellate court cannot rightly exercise its discretion to issue a writ whose only effect
would be to avoid those conditions and thwart the Congressional policy....
19 that reason this Court has consistently refused to sustain the use of mandamus as
For
a means of reviewing the action of a district court in denying a motion to remand a
cause to the state court from which it had been removed. And for the same reason it
has held in other cases that the writ will not issue to review an order overruling a
plea to the jurisdiction, or denying a nonsuit, despite the inconvenience to petitioner
of being forced to proceed to trial in advance of a review of the court's action.
20

Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26-31, 63 S.Ct. 938, 941-44, 87
L.Ed. 1185 (1943) (citations and footnotes omitted). The principles articulated
in Roche thus dictate that we decline to reach the jurisdictional issue in this
case.

21

In arguing the contrary proposition, plaintiffs rely primarily on In re Sugar

Antitrust Litigation, MDL 201, 588 F.2d 1270 (9th Cir.1978), cert. denied, 441
U.S. 932, 99 S.Ct. 2052, 60 L.Ed.2d 660 (1979), and BancOhio Corp. v. Fox,
516 F.2d 29 (6th Cir.1975). Both cases are readily distinguishable. In
BancOhio, a mandamus case, the issue was whether the subject matter of a case
removed from state court was within the exclusive jurisdiction of the federal
courts. Answering that question affirmatively, the Sixth Circuit granted the

petition for mandamus, holding that, because the state court never had
jurisdiction, the federal courts could not exercise removal jurisdiction. See 516
F.2d at 31-32. In BancOhio, however, unlike the present case, the petitioners
had moved for remand and, when that motion was denied, had filed a motion to
dismiss the case without prejudice. See id. at 30-31. Only after the district court
had denied both motions did the petitioners ask the Sixth Circuit for a writ of
mandamus, thereby presenting the "exceptional circumstances" justifying the
issuance of the writ. Id. at 32-33; see Black v. Boyd, 248 F.2d 156, 159-60 (6th
Cir.1957).
22

In Sugar Antitrust, the Ninth Circuit was asked to reverse a district court's
refusal to remand an action to state court. The Ninth Circuit held that denying
remand in a case involving state antitrust laws would amount to "federal preemption of the antitrust laws by judicial act," 588 F.2d at 1273, and it therefore
reversed on jurisdictional grounds the refusal to remand. However, Sugar
Antitrust involved an appeal of a certified question under 28 U.S.C. Sec.
1292(b), see 588 F.2d at 1271. In the instant case, the jurisdictional issue is
raised only by a petition for writ of mandamus and is thus subject to the
principles enunciated in Roche.

23

The petition is denied.